Copyright’s Dubious History

I’m an attorney with an interest in copyright law. When Noah asked me to participate in this roundtable, I decided to do some research on the history of copyright. I have no background in history.

Why do we have copyright? I figure Wikipedia is probably a decent barometer of common thought. The Wikipedia article on copyright currently has a “justification” section quoting the World Intellectual Property Organization, which states that copyright exists:

“To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”

Unfortunately, as it turns out, history presents a more sobering story.

Copyright in Anglo-American law can be traced back to the practices of the Stationers Guild, an organization founded in London, England, in 1403. At the time, all commerce was dominated by trade guilds, each having a monopoly on their respective trades. People could only enter a trade by becoming a guild member, and the only way to become a guild member was to perform a lengthy apprenticeship in a guild affiliated business.

The Stationers were not writers, but were tradesmen who manufactured and sold books. Originally, the guild consisted of booksellers, book binders, text letter writers, and book illustrators. After the creation of the movable type printing press (the first English language book created with the new technology arrived in 1473 or 1474) membership shifted to printers and booksellers.

The printing press helped foster social change, in part by aiding the spread of new religious movements. The government responded with laws to restrict freedom of speech, starting in 1534, when a new law was passed making it possible to commit treason through writing alone, books needed to be approved, or “licensed”, before publication and the importing of foreign books, which could contain unregulated ideas, was banned[i]

The government’s increasing desire to regulate books provided an opportunity for the Stationers. In 1557, Queen Mary I, who probably saw a benefit in establishing closer ties between state censor and privacy industry, issued a charter for the Stationers Guild, turning it into the Stationers’ Company. This new charter ensured:

“…only members of the entrenched printing structure would print and sell books, gave them the right of search and seizure of any premises for allegedly pirated or contraband and illegal imported literature, and made fines and imprisonment for three months without trial mandatory for any person whom the company deemed guilty of violation of the law and of their charter.”[ii]

As you might expect, there was a limit to abilities of the authorities, and the monopolists, to stop the pirate book trade. In 1588, for example, Presbyterian tracts were printed by presses that were moved around the country to avoid detection. Evidently, the consequences of getting caught could be extreme: “A contemporary who’s published handbills criticizing Queen Elizabeth the First had both his arms chopped off…”[iii]

The Stationers Establish A Proto Copyright: for their Benefit Only

Over time, a practice emerged in the Stationers Guild where a member would enter into a registry the first edition of a new work, and the other guild members would recognize that the right to print those books belonged to the registering member alone.

Authors had no legal protections at all. While the registration system created some incentive for a printer to pay an author for the first physical copy of a book, if a printer obtained an authors manuscript without payment and reproduced it, an author had no legal recourse.

The parallels to certain 20th century media are really startling:

“All property rights in a printed piece belonged to the publisher. The author might receive payment for delivering a manuscript, and an occasional bonus if it sold well, to ensure access to his future writings. A successful book could go into twenty or thirty editions within a few years, but the author received no more than his first piece of coin. … Writers of broadside ballads rarely got more than a few coppers and all the ale they could drink. Rich amateurs were satisfied to see the finished work and have the opportunity to distribute it among their peers.” [iv]

Statutory Protection “for authors”

Eventually, social change caused a snag in the guild’s monopoly. The end of the 17th century brought the “Age of Enlightenment”, and a new Bill of Rights. The House of Commons became fed up with the practices of the Stationers (Evidently, there was concern over the price and quality of books), and refused to renew the law granted them a monopoly over the book trade. This created a problem for the vested interests:

“For five straight years thereafter, the Stationers’ Company unsuccessfully petitioned Parliament for a new licensing act and then regrouped to develop a new strategy: placing authors out in front as the alleged victims and as the necessary beneficiary of protection against their victimization.”[v]

Forming an alliance with notable authors of the day, the Stationers successfully lobbied for a copyright statute.

They got their wish, in more ways than one. Under the new Statute of Anne, passed in 1710, (granting a copyright of 14 years, with 14 year renewal), the business of making books continued much the same. Authors still generally sold their books to printers, for a flat fee, and the printers owned the books until the expiration of the copyright term. Evidently, authors lacked the ability to effectively bargain with the era’s joint bookseller/ publishers.

It was apparently enough of a problem that, in 1735, a charitable organization, the “Society for the Encouragement of Learning” was formed, dedicated to the mission of publishing books on behalf for authors and giving the profits to authors.

Here’s the really juicy part: in 1738, the Society lobbied for amendments in copyright laws to improve the economic position of authors, proposing a rule which would limit an author’s ability to assign copyright for a term greater than ten years. The Society’s leader, John Caterel, a patron of the arts, stated in 1738 that “the true worth of books and writing is in many cases not found out till a considerable time after publication thereof; and authors who are in necessity may often be tempted to sell and alienate their right which they will hereby have to the original copies of books before the value thereof is known.”[vi]

Ultimately, the amendment was blocked by the House of Lords. As for the Society, the booksellers, protecting their own interests (evidently, many booksellers were also owned printers), refused to carry their books, and the society went out of business in 1748, a failure.

That’s the end of my copyright research. I’m not going to make any direct parallels between the state of the 1730s book industry and media today. Today’s market is undoubtedly more complex, and diverse, than the 1730 book trade. I do think, however, that many of the issues of the time are still relevant to author’s today. To what extent, I’ll leave as an exercise to the reader.

I mainly relied on the sources listed in the endnotes when writing this article, as well as the article “Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475 – 1641” by David Harvey, available at http://www.anzlhsejournal.auckland.ac.nz/pdfs_2005/Harvey.pdf.
[i] Religious squabbles were something of a national past time in the 1500s, which saw the Catholics fighting the Lutherans, and later the Protestants fighting the Presbyterians.

[ii]Sanjek, Russell American Popular Music and Its Business: The Beginning to 1790.

“Pallas, do you know if there have been efforts to limit the length of time that an author can assign copyright in recent times at all? It seems like a change that would help creators a lot.”

I’ve never heard of any efforts along this line. *Edit: See my comment below.*

Presumably, any efforts would have to be forward looking, because, well, look at Disney, they just spent 4 billion dollars purchasing Marvel. It would be pretty crazy if congress passed a law which causes, say, 2 billion dollars in assets to go up in smoke overnight.

I don’t think writers are particularly organized, at any rate. For every Alan Moore, vowing never to work for DC again, you have folks like Neil Gaiman, who had disagreements with DC over Sandman, but still returned to DC to do Batman. (Even Alan Moore came back to them for a while)

And there are writers and content creators that benefit from the current system just fine. In comics, the “big name” creators at Marvel and DC might have more to lose from reform than they have to gain. (When Image split from Marvel, Peter David, known for writing Spider-man and the Hulk, wrote a few columns in But I Digress sneering at the idea of creator ownership) This is not exactly the stuff of a movement.

I agree with Pallas that there’s no meaningful artistic side of this movement yet. But I do think there’s a growing political movement on related issues that artists can plug into. NGO folks like the Open Technology Institute or the Media Access Project are working on policy issues that are closely related to questions of copyright and control.

To no small extent the issues germane to copyleft are questions of media access and the impact of technology, since the copyleft license probably really wouldn’t be able to earn anybody any money without the Internet. So if artists will plug into those existing political organizations and make sure that the needs of artists are heard and incorporated into their policy agendas, I think that collaboration could go a long way.

I think plok on the other thread noted that allowing download sites to compensate artists in a similar way to the system set up for radio has actually been blocked by record companies. It seems like there are various places where artists might organize against the current copyright regime around issues like that.

Ultimately, though, it seems like success in such ventures would depend more on labor organizing than on free culture per se.

My understanding is not well research and based on vague recollections of my education, but… I think this is a pretty distorted and thin article.

There were absences of well-developed copyright laws after the period you were discussing, in the U.S. as an obvious example, and my recollection is the results were absolute chaos. French and other foreign publishing pirates flooding the U.S. with counterfeit books (often poor imitations), authors coming up with crazy publishing schemes to avoid the weak U.S. laws and get the protections of more developed European law, and the U.S. regarded in Europe as not a place of serious authors as a result.

If I recall the argument correctly, the argument has been made that the rise of U.S. as a country whose writing mattered was concurrent and a result of the development of stable U.S. copyright laws. You can argue that the fact this country wasn’t a great country in books while the copyright laws was merely correlative and not causative, but I think that ignores … well, I mean, the actual feelings of the authors of the time, for starters. Mark Twain’s writing on copyright, for instance– Twain didn’t believe in perpetual copyright by any means, but he wasn’t exactly a great fan of U.S. copyright laws or how promoted the public domain was at that time.

Furthermore, copyright as some kind of unique invention of England — I mean, well, that’s just silly.

Well, let me restate that and I apologize for my manners– it’s a perfectly nice and interesting article, and one I enjoyed, and thank you for it, but I think the conclusions that you begin with, that “Awwwwww. It gives creators dignity, and it somehow makes everything cheaper!”– I thought that bit of hyperbole was a bit objectionable based upon the very limited history presented. That’s all.

I think my recollection is that England was first with copyright, as with a lot of things.

I think it’s pretty dubious to suggest that the U.S. literature was hurt by lack of copyright. The U.S. was a cultural backwater; there were hardly any English-speakers here compared to England for a good long time. I think copyright followed on the development of a national, exportable literature, not vice versa. (I mean, if we got Mark Twain with weak copyright laws, it’s hard to see how we exactly could have done better with strong ones.)

Basically, the U.S. then was like China is today. If you’re a developing economy, it’s really not in your interest to have strong intellectual property laws; they benefit the more established economies, mostly. (Or so this article argues in any case.)

Abhay, I qualified the Copyright thing by saying “Anglo-American”, I didn’t do any research outside of England, but none of the things I happened to look at referenced copyright as a general right before the Statute of Anne. I assume predecessors were more like the “letter patents” given only to people the government liked in other countries.

At any rate, the wikipedia article on history of copyright says the Statue of Anne is considered the first…

“If I recall the argument correctly, the argument has been made that the rise of U.S. as a country whose writing mattered was concurrent and a result of the development of stable U.S. copyright laws. You can argue that the fact this country wasn’t a great country in books while the copyright laws was merely correlative and not causative, but I think that ignores … well, I mean, the actual feelings of the authors of the time, for starters. Mark Twain’s writing on copyright, ”

Well, first of all, I’m not arguing for the elimination of copyright, just pointing out that the system was not designed to benefit authors. (and probably, in many ways, still isn’t)

Of course I don’t know what sort of article you recall reading, but its very, very easy to make a argument combining two random facts. I’ve seen a Law journal article arguing that weak copyright in Japan is the reason that anime and manga is popular here.

I think the argument went something like, the law professor saw kids read manga, manga comes from Japan, and that jumped to the weird conclusion that kids in America don’t learn to draw like they do in Japan, because apparently kids don’t learn to draw unless they can sell doujinshi without fear of being sued.

Twain appears to be a weird choice to make your point, since he apparently wanted copyright never to expire. Even trying to make a nostalgic pre- statute of Anne argument to make his point:

“When I appeared before that committee of the House of Lords the chairman asked me what limit I would propose. I said, “Perpetuity.” I could see some resentment in his manner, and he said the idea was illogical, for the reason that it has long ago been decided that there can be no such thing as property in ideas. I said there was property in ideas before Queen Anne’s time; they had perpetual copyright. ”

This is just crazy:

“I made an estimate some years ago, when I appeared before a committee of the House of Lords, that we had published in this country since the Declaration of Independence 220,000 books. They have all gone. They had all perished before they were ten years old. It is only one book in 1000 that can outlive the forty-two-year limit.

Therefore why put a limit at all? You might as well limit the family to twenty-two children. ”

The copyleft folks make the point that copyright is a monopoly: is it possible that the problem here isn’t how long the rights remain with the author, but how “exclusive” they are, how much control the rights holder is allowed to exert over the work?

For art at least (this may work less well for inventions), it seems like anybody should be able to do anything with a work as long as they a) paid creators some fee, b) credited the creator, and c) indicated prominently whether or not the work was approved/authorized by the creator or not. I realize the fee would have to be regulated and reasonable for this to actually be anything more than a titular difference, but it seems like the real problem from a “freedom of culture” standpoint is mostly the default assumption that anybody other than the creator or rights holder does NOT have permission to use a work for derivative purposes. The creator or rights holder could then make the decision how diligently to police whether people who used the work paid/credited him or her. So you have to pay the artist when you download music, but it doesn’t matter where you download it from — iTunes, Bit Torrent, or your friend’s hard drive. And the guy with the best distribution system can build in a cut for himself/handle the payments to the artist for you, etc. But he’s got no monopoly, just a better business model.

The biggest problem is not that someone gets paid, creator or creator’s children or whomever, it’s that the rights holder — often a corporation who has no interest in the work at all except as a source of income — has the power to prevent the work from being used, rather than simply the expectation of benefit from its use and of proper credit.

I am not sure that even an author ought to have the power to lock down by force of law something that’s already out there in the public sphere.

You don’t own a piece of art the same way you own your house. Obviously you don’t want the default expectation that random people can come in and sleep in your spare room or use your oven for a fee. But that’s private property. It seems like a big part of the problem is that art, once released into the world, isn’t private anymore, and yet we’ve built legal structures around it that are based on notions of private property.

There are a couple big problems with a fee system though: first, who decides what constitutes a “reasonable” fee? Would Congress set a standard fee? I doubt there would be much support for that in the artistic community (not even getting into corporate opposition). And if the artists set their own fees, then what’s to stop Stephen King or J.K. Rowling or DC Comics from raising their fees to exorbitant levels? If you’re book is a multi-million dollar franchise, then a “reasonable” fee could be a very large number.

Second, a fee system wouldn’t really solve the problem of corporate exploitation of artists, and in some ways it’s just as unfair. For example, let’s say Joe Average write a book and the fee for using his characters is $100. Now Disney comes along, pays him $100, and then makes a movie that grosses $300 million. Joe doesn’t get one red cent of the profits, since Disney already paid him his fee.

“the real problem from a “freedom of culture” standpoint is mostly the default assumption that anybody other than the creator or rights holder does NOT have permission to use a work for derivative purposes.”

I just don’t see most successful creative people buying onto this. The people who own a franchise themselves will want to keep it, and the people who work on the Star Trek franchise or whatever aren’t going to want the franchise to be devalued by competition.

As for the free distribution thing, for example, I can read Girl Genius very easily by going to girlgenius.net. If I can read it anywhere, that creates a problem for the content creators, since it would be harder to make money on ads.

How many successful creative people are going to want this? I think the movie credits said Paley had an endowment of some sort to make Sita sings the Blues. That doesn’t sound like a workable model for a lot of people.

I’m optimistic about the ability of creative people to use the Internet to improve their bargaining positions, and I think there’s room for nonprofits to play a role in organizing the creative community, but I’m not holding my breath for major changes to copyright law.

I can see a movement around issues like orphaned works or protection of fair use rights or even a lowering of the copyright term, but I think some of these suggestions are very divisive and unlikely to be politically feasible. (I dunno, maybe if there’s major social change 100 years from now or something…)

“And if the artists set their own fees, then what’s to stop Stephen King or J.K. Rowling or DC Comics from raising their fees to exorbitant levels? If you’re book is a multi-million dollar franchise, then a “reasonable” fee could be a very large number.”

The other obvious problem is that, if there was a reasonable fee to do “Superman rapes everybody” comics, people might start to dislike Superman. Part of the value of an intellectual property is the “good will” that people have for it, fond memories of reading it as a kid, etc. If the owner can’t protect their “good will” then the property could lose its value.

Pallas — I have no doubt at all that getting people to accept a system that gives them less control is entirely unfeasible from a pragmatic standpoint.

But I also think there’s value in identifying the parallels here with other situations where the privatization of public things causes problems: think about telecom: corporate control of the spectrum, which is supposedly a public property, and also of the Internet. That’s very much the political agenda of the Open Technology Initiative and I do think it’s a really meaningful recognition.

I think creative people will divide in much the same way that political people divide on this issue: some people will appreciate and value the notion of creative work as a public good and others won’t. But it’s certainly unlikely that we’ll see meaningful political action toward the kind of principles I mentioned – it’s incredibly hard even in telecom where the “public” nature of the property is much more obvious, so it would as you say take a massive cultural shift.

“Pallas, do you know if there have been efforts to limit the length of time that an author can assign copyright in recent times at all? It seems like a change that would help creators a lot.”

Actually, I take back my answer to this question.

Under the 1976 copyright act, there’s a right of termination after 35 years for transfers of licenses made beginning in 1978. Its not automatic, the author has to apply for it, but it makes an effective limit of 35 years. I think this will only apply to U.S. rights.

Authors who assigned rights in 1978 will start getting back rights beginning in 2013.